Dear OHS Practitioners

Having just returned from my Durban, Port Elizabeth and Cape Town OHS Roadshows, I thought that I should highlight some of the issues raised by participants.

Predictably section 16 reared its ugly head. Remember section 16(2) ‘appointments’ are an in house arrangement. Don’t let outsiders dictate how you structuralise your Employer (tacit) Health & safety Structure. DoL should not be consulted as they will feel obliged to dictate their rigid interpretation. Once you involve them and they dictate, it becomes a lawful order which must be obeyed! Ensure that persons signing these ‘appointments’ are aware of the implications and provide them with the necessary resources to discharge their duties. Emphasise that it is a privilege to be ‘appointed’ in terms of section 16(2) as it brings them into a structure that ultimately leads to the CEO of a corporate body. It does not make them more liable in terms of the OHS Act. If you are, for example, a factory manager who has refused to sign a section 16(2) ‘Appointment’ it would be foolish to try and argue that health and safety issues are not part of your mandate and thus you have no potential criminal liability should something go awry at your factory / workplace. Click herefor more. Ideally the person that you normally report to in the company hierarchy should be your assignor. It is not necessary for the CEO to ‘appoint’ all the section 16(2) persons and the devolution approach works better. Supervisors are legally technically speaking section 16(2) read with section 8(2)(i) appointments although most employers appoint them in terms of section 8(2)(i). I would not change it though. Section 8 does not provide for legal appointments. It merely requires proper supervision as a way of discharging the duty of providing employees with a safe and healthy working environment. The rigid restriction which is attached to a delegation of duties does not apply.

The section 37(2)Written Agreement remains an issue. Contractors remain suspicious when asked to sign one, basically because it is misinterpreted and unnecessarily complicated. Some employers have had elaborate section 37(2) contracts drawn up by attorneys using legalese that intimidates everyone. Contracts are civil law instruments and the OHS Act is criminal law. The section 37(2) Written Agreement is merely an indicator of reasonable steps which an employer must show in order to escape criminal liability for the wrongdoing of mandataries. It is no guarantee that The Presumption of Wrongdoing by employers will not be activated and is thus not an indemnity. If, for example, you have concluded a Written Agreement and a contractor flouts the OHS Act, you may in theory at least, be charged for that crime if the evidence shows that you permitted an unlawful act or omission by the contractor. You can never contract yourself out of criminal liability! Section 37 of the Act presumes employers to have committed the crimes of either employees or mandataries and when one sees the word ‘presume / deemed / vermoed’ in criminal law, it means that, unless you can prove certain things, you become liable for their crimes. Although the Written Agreement is almost superfluous in construction since the regulations compel inter-action between client (employer) and principal contractor (mandatory), it still has a place in construction. It is a useful covering document in which to introduce client site rules, internal safe working procedures etc. Click herefor more.

While section 10is not yet clouded in controversy, I did focus on it quite extensively. I think the folks at the workshop finally realised its far reaching implications. Those of you who are installers, erectors or designers of articles for use at work or on any premises may wish to embrace the legal relief provided in section 10(4) of the Act. You can actually transfer legal duties to other parties via the Section 10(4) Written Undertaking. This also applies to sellers, manufacturers, importers of articles that are used at the workplace. Designers, installers and erectors can use the section 10(4) Written Agreement to legally transfer their duties as per the construction regulations. For example, a designer of a structure can inform a contractor of the anticipated hazards and make information available about the safe execution of work and via a section 10(4) Written Undertaking and the duty of ensuring it is constructed safely will pass to the contractor. I think I managed to drive the point home using the Stellenbosch Collapse case as an example. As I said before the inquiry is still on-going but I stuck to the information that was in the public domain. The presiding officer has requested the Department of International Co-operation to assist the inquiry in obtaining information from the manufacturer of the articles (props) in Italy. A classic section 10 scenario. Click herefor the Cape Times article.

Other issues raised pertained to intoxication, civil law indemnities, labour brokers versus OHS and the implications of the proposed amendments to the construction regulations. We also took a look at the draft National Occupational Health & Safety Bill and the abandoned – thus far – ridiculous amendment to the Mine Health & Safety Act , in the form of section 86Awhich endeavours to hold CEOs personally liable for any fatality at a mine even if someone else caused the death. The draft NOH&S Bill will be promulgated eventually. We have signed a treaty in Geneva and we are duty bound to introduce one uniform piece of OHS legislation in the future. Since the Bill is molded on the MHS Act, one must look to the latter in predicting the future. OHS has regrettably become so politicised that sanity has gone out the window. The mines currently feel the brunt but the focus will broaden as the authorities turn on the heat. Most of it is, however, hot air as the inspectorates and the courts seem to have little appetite in taking on employers. Just look to the Presidential Mining Audit which revealed that only 3 out of 218 MHS Act cases had been finalised by the courts since 2004.

The Department of Labour has finally published their Construction Guidelines. Click on this link : http://www.labour.gov.za/documents/useful-documents/occupational-health-and-safety/construction-health-and-safety-guide

Click herefor my previous OHS Practitioner Newsletter.

Click herefor my previous OHS Chat & Skinner Newsletter.

Finally click herefor my latest Subscriber Newsletter.

There is still plenty of room available at my final workshop